Another look at detainees’ plea

Posted Sat, September 11th, 2010 9:56 pm by Lyle Denniston

The D.C. Circuit Court has issued decision after decision in recent months, turning aside Guantanamo Bay detainees’ legal challenges, and each time it has relied mainly upon its ruling 17 months ago in what is known informally as “Kiyemba II.” On Friday, however, at least some judges on that Court signaled an interest in pondering whether to reconsider it. In a brief order, the Court asked the Obama Administration to offer its views on whether the full Circuit Court should grant en banc review of 31 cases on its docket — all seeking to test “Kiyemba II,” one of the Circuit Court’s most sweeping rejections of judges’ power to control the fate of detainees.

The Administration is to file a response by Sept. 25. However, it has already made clear, in a filing in those 31 cases last Thursday, its view that “there is no substantial likelihood that this Court will grant initial en banc hearing in these cases.” (The lead case among the 31 is Abdah v. Obama [Circuit docket 05-5224.]} But the lawyers for the detainees have already indicated that, if the Circuit Court turns them down, they will attempt to take the case to the Supreme Court for a test of “Kiyemba II.”

The situation with “Kiyemba II” has gotten quite complicated, so, first, a bit of background. The case has the title Kiyemba v. Obama, but is is not the same case as an earlier one with the same title. In the first one, known informally as “Kiyemba I,’ the Circuit Court ruled that no judge may order a detainee transferred to the U.S., even though cleared to leave Guantanamo.

In Kiyemba II, issued in April 2009, the Circuit Court went further: it ruled that District judges have no authority to regulate the movement of detainees from Guantanamo, anywhere in the world. Judges, it said, are not to second-guess the government’s decisions on resettlement or transfer of any detainee. The Circuit Court denied rehearing en banc of that case in July of last year, and the Supreme Court denied review of a petition in that case (Supreme Court docket 09-581) this past March 22.

Since March, nothing has happened in Kiyemba II at the Circuit Court, except that various panels of that Court have relied upon it repeatedly as a precedent for further curbing District judges’ powers to restrict movement of detainees, even if judges have attempted to do that in order to retain authority to decide the merits of legal challenges to the detainees’ continued captivity. Judges have been left with no option but to rely upon the government’s assurances that it will not send a detainee to a country where torture or abuse is likely to occur.

Because the Circuit Court has already declined to reconsider Kiyemba II directly, lawyers for the detainees in the Abdah group of cases have sought to accomplish that same full Court review by pressing for it in their cases. Essentially the only issue they have raised is whether Kiyemba II should be overturned by the en banc Court.

The Circuit Court seldom grants initial en banc hearing of any case — that is, a hearing and decision before a three-judge panel has had a chance to rule on it first. It thus would have been no surprise, especially given the history of Kiyemba II itself and the Circuit Court’s other actions relying on that ruling, if the Abdah plea had simply been denied. But the Court instead will keep the plea alive at least until it hears from the Administration. Depending upon what happens then, the case could be on its way to the Supreme Court in a matter of weeks.

If and when Supreme Court review is granted, it will be a test not only of the Circuit Court’s Kiyemba II decision, but also of the meaning — for Guantanamo detainees — of a Supreme Court decision in June 2008 in the case of Munaf v. Geren. Although the Munaf decision involved transfer of two individuals held by the U.S. military in Iraq to the Iraqi government for prosecution on criminal charges made by that government, the D.C. Circuit found in Munaf a sweeping rejection of federal judges’ authority to second-guess any transfer decision made by the U.S. government of a detainee, no matter where held, including Guantanamo.

Three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said in a statement in July in another case that there are unresolved issues about what the Munaf precedent is supposed to mean, especially for Guantanamo prisoners.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.